Ramraj Singh vs State of M.P. and Another

This Judgment has been overruled by : Ramrajsingh Vs. State of M.P. and Another, (2009) 152 CompCas 346 : (2009) 5 JT 649 : (2009) 5 SCALE 670 : (2009) 6 SCC 729 : (2009) 5 SCR 1130

S.L. Kochar, J.—This revision has been filed by the applicant against the judgment dated 28-8-2002 passed by the learned Addl. Sessions Judge, Indore in Cr. Appeal No. 265/2002 thereby dismissing the applicant''s appeal and maintaining the conviction and sentence of S.I. for one month and awarding compensation of eight lacs rupees to the non-applicant No. 2. In default of payment of the amount of compensation to suffer further S.I. for three months u/s 138 of the Negotiable Instruments Act, passed by the learned Judicial Magistrate First Class, Indore in Cr. Case No. 579/96 on 10-7-2002.

Tersely the case of the non-applicant/complainant before the Court below was that the complainant was dealing in the business of transportation. The applicant was the General Manager of J.K. Utility Division on J.K. Synthetics Ltd., whereas the absconded accused Anup Chaturvedi was the Finance Manager. Both were working under the Managing Director Manoj Kumar Mathur. The non-applicant and the co-accused Anup Chaturvedi placed order No. U/QMR/Coal 96028, dated 7-8-96 to one Vinayak Coal Corporation. In pursuance of this order, the coal was transported by Maruti Road Carrier, Indore which is owned by the applicant. The Transportation Charges of Rs. 9,45,000/- were paid through four cheques. All the four cheques were given to the applicant by the non-applicant and co-accused.

As per the information given by the non-applicant to the applicant, the applicant placed the cheques before the Bank for encashment, but the same were dishonoured. All the cheques were of the Bank of Rajasthan Branch, Jhalawad. The cheques were returned dishonoured with the endorsement of ''Stop Payment''. On 28-11-96, a registered notice was sent to the Company which was served by Registered Acknowledgment Due on 642-1996. Even thereafter, payments were not made. Therefore, that complaint was filed by the non-applicant against the applicant who was the General Manager and absconding accused Anup Chaturvedi, the Finance Manager, and Managing Director Manoj Kumar Mathur who has been discharged by order dated 23-9-98 and the case was proceeded against the applicant and absconding accused Anup Chaturvedi, Finance Manager.

According to the non-applicant, the applicant was working in the Company. The order of transportation was placed by him, the material was received by him and the cheques were given to him by the applicant and co-accused Anup Chaturvedi. Out of four cheques, the complaint in regard to the cheque amount of Rs. 2,00,000/- dated 12-9-96 was not pressed, because a separate complaint was filed for dishonour of this cheque.

Both the Courts below found the applicant guilty for the offence punishable u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the ''Act'').

Learned Counsel for the applicant has assailed the conviction of the applicant on the following grounds :--

The applicant was not the in-charge and responsible for the conduct of the business of the Company. Therefore, he could not have been held guilty. The cheques were not signed by the applicant and the notice u/s 138 Proviso (b) of the Act was not given in the name of the applicant and in default of payment of compensation granted u/s 357(3) of the Code of Criminal Procedure, the jail sentence cannot be imposed. Learned Counsel has placed reliance on the judgment passed by the Supreme Court in the case of K.R.G. Nair v. Jindal Menthol India Ltd. [2002 SCC (Cr.) 358] and Sibi and Anr. v. Vilasini and Anr. (1999 Cr.LJ 878).

Combating with this argument, the learned Counsel for the non-applicant submitted that the applicant and absconding accused Anup Chaturvedi went up in Cr. Revision No. 77/99 (decided on 23-7-99) against the order dated 16-2-99 dismissing the application for discharge submitted by the applicant. In paras 8 and 9 of the judgment, the learned Revisional Court has held relying on the judgment passed in the case of Dilip Kumar Jaiswal v. Debapriya Banerjee [I (1992) BC 403 by Calcutta High Court] and in the case of R. Ramachandran Vs. Yerram Sesha Reddy and Others, that the applicant/accused and absconding co-accused were impleaded in the complaint being General Manager and Finance Manager of the Company and, therefore, separate notice to them was not necessary. The notice served upon the Company would also be considered as notice to the applicant and without impleading the Company as accused in the complaint, the complaint can be filed and well survived against the accused-persons who were the officials of the Company. This finding has not been challenged before the Superior Court and therefore, it has a binding effect.

Learned Counsel further submitted that the exact words of Section 141 of the Act need not be reproduced in the complaint, because the facts as stated in the complaint as well as in the statement of the complainant taken in its totality disclosing the ingredients of the offence alleged and both the Courts below have given concurrent findings of fact that the applicant and absconding co-accused Anup Chaturvedi were the in-charge and responsible for the conduct of the business of the Company. Now this finding of fact in revision, cannot be challenged.

Learned Counsel further submitted that the Courts have power in view of the judgment rendered in case of Suganthi Suresh Kumar Vs. Jagdeeshan, to enforce the order of compensation by imposing sentence in default. Learned Counsel relied on the judgment delivered in the case of N. Doraiswamy and Anr. v. Archana Enterprises etc. (1995 Cr.LJ 2306) wherein it has been held that the exact words used in the statute u/s 141 of the Act are not necessary to be mentioned. On the basis of the evidence, it can be considered whether the accused persons were in-charge and responsible for the conduct of the business of the Company.

Having heard the learned Counsel for the parties, and after perusing the entire record, this Court is of the opinion that it is a settled position of law that without arraying the company as accused in the complaint, the officials of the company who were the in-charge and responsible for the . conduct of the business of the company, can be prosecuted and separate notice to the applicant and officers of the company u/s 138 Proviso (b) of the Act is not necessary if the notice has been served upon the company, because, no firm or company can act without the help of human agency.

Now, here in the present case, the orders were placed by the accused persons, coal was received by them and cheques were also handed over to the non-applicant by them. Both the Courts below have considered these actions of the accused persons and held them in-charge of the company and responsible for the conduct of the business of the company. This Court finds no illegality, irregularity and impropriety in the concurrent findings arrived at by the Courts below. Therefore, refrained from interference. If the applicant/accused persons were the incharge and responsible for the conduct of the business of the company, then it was immaterial whether they have signed the cheques or not. The fact remains that they had handed over the cheques to the non-applicant and the same were dishonoured.

Learned Counsel for the applicant has vehemently argued that for default of payment of compensation granted u/s 357(3) of the Code of Criminal Procedure, jail sentence cannot be imposed. According to him Section 53 of the Indian Penal Code defines punishment. Fine is also punishment as per provision of Section 53 of the IPC, Clause Sixth. Section 63, IPC is giving power regarding amount of fine and Sections 64 to 67 are giving powers to the Courts for imposing the sentence in default of payment of fine. There is no provision in the Indian Penal Code or the Code of Criminal Procedure for imposing jail sentence in default of payment of compensation as per provision u/s 357(3) of the Cr.PC and the compensation awarded in this provision cannot be termed as fine because, under this provision, the learned Magistrate has unlimited power to grant compensation and if it is considered as fine, then, in view of Section 29 of the Cr.PC the Judicial Magistrate First Class has no jurisdiction to impose more than Rs. 5,000/- fine. u/s 357(1) under which the compensation can be granted out of the fine amount by the Court and for default of payment jail sentence can also be awarded. He further submitted that as per provision under Sections 421 and 431 of the Cr.PC the amount of compensation awarded u/s 357(3), Cr.PC can be recovered under the Revenue Recovery Act. He placed reliance on Sibi and Anr. v. Vilasini and Anr. (supra) as well as Rajendra v. Jose [2001(3) K L T 431].

On conspectus reading of the provisions of Sections 53 and 63 to 67 of the Indian Penal Code and Section 357 (1) and (3) read with Sections 421 and 431, Cr.PC there appears substance in the arguments of the learned Counsel, but the hands of this Court are tied in view of the judgment rendered by the Supreme Court in the case of Suganthi Suresh Kumar (supra). This judgment is based on the judgment of the Supreme Court in Hari Kishan Vs. Sukhbir Singh and Others, Learned Single Judge of the Kerala High Court in the case of Rajendra v. Jose (supra), while considering the judgment of Harikishan (supra) has distinguished it and directed that the decision in Harsingh''s case (supra) is not to be followed as the Supreme Court laid down the said legal proposition without adverting to Section 431 of the Code. On this direction by the Single Judge of Kerala High Court, the Supreme Court depricated this practice and observed as follows in paras 9 and 11 :--

"9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia and Others Vs. Union of India (UOI) and Others, that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."

"11. When this Court pronounced in Harikishan Singh v. SukhbeerSingh (supra) that a Court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all Courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a Larger Bench of this Court. Hence, learned Single Judge of the High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the sub-ordinate Courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose 2001(3) K L T 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the Single Judge of the High Court has incorrectly reversed it."

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In view of the mandate issued by the Supreme Court in Suganthi Suresh Kumar''s case (supra) the imposition of jail sentence in default of payment of compensation awarded by the Courts below u/s 357(3) of the Code of Criminal Procedure is well within the purview of law.

After overall consideration of factual and legal position involved in the case, and keeping in view the revisional powers of this Court, this Court finds no substance in the revision. Therefore, the same is dismissed.